Yes, it is possible to transition from a cap-exempt to a cap-subject H-1B visa, but you will need to go through the regular H-1B lottery process for that.
The nonprofit’s cap-exempt petition is filed first. On the Fellow’s first day in the Fellowship and in cap-exempt status we will share the approval notice and an employment verification letter for the full-time employer’s law firm to include in the concurrent cap-exempt filing for your organization, to demonstrate employment with the cap-exempt organization. We advise that the concurrent petition is filed after the cap-exempt employment with the non-profit partner begins. Our goal will be to work with you so that the full-time petition is filed a couple days after a Fellow's start date, as soon as we get the physical approval notice.
The foreign nationals in this program all have two employers, a nonprofit partner (5 hours per week) and the company seeking to employ them full-time (40 hours per week). During their Fellowship, the nonprofit partner controls the employment of the Fellow and facilitates their work with college and university partners. The Build Fellowship’s education team works with Fellows to scope and launch projects in their field of expertise (STEM/Business) for students at partner schools and the general public. As subject matter experts, the Fellows job is to lead these technical projects and work with participants on a weekly basis. The employment for their full-time employer would be controlled by their full-time employer and the duties involved with their full-time role – the same as you would do for a regular cap-subject H-1B petition.
We encourage all our partner companies to register their employees in the H-1B lottery. If your employee is selected in the lottery, you can file a cap-subject H-1B visa, and they will change status and transition out of the Fellowship. If your employee is not selected in the lottery they can stay in our program and no further action is needed.
Both the nonprofit partner and the full-time employer must pay the fair wage, done through a salary share – a split of the full-time salary the company is offering to the employee. Based on the full-time salary being offered to the employee, The Build Fellowship calculates 5 hours per week at the fair prevailing wage for the employee's specialty occupation and invoices the full-time employer in quarterly increments for that amount. The full-time employer pays the remainder directly to the employee as the full-time pay. We send the breakdown to inform the employer the amount that will go on the full-time employers LCA and ours and will work with you to ensure both organizations are compliant.
An employee is able to start employment with the full-time employer when the concurrent petition is received by USCIS. It is fine to use regular processing for the concurrent petition. If a concurrent petition receives an RFE for maintenance of cap-exempt H-1B status with a nonprofit partner, it is easier to show maintenance for several months rather than several weeks, thus favoring regular processing.
Occasionally, we see the concurrent petition receive an RFE to confirm the employee is still working in The Build Fellowship for five hours per week. If this occurs, we share paystubs and evidence of the work product from their employment in The Build Fellowship.
A cap-exempt H-1B visa is not subject to the annual quota or cap set by the U.S. government. This type of visa is typically granted to employees of nonprofit organizations, research institutions, and universities.
When a foreign national is already working part-time on a cap-exempt H-1B visa, they are allowed to hold an additional job with another employer under a concurrent H-1B visa. This allows them to work for multiple employers simultaneously, as long as they maintain their employment with the cap-exempt organization. Each employer must file a cap-exempt H-1B petition.
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